Facts
- Josiah Mayo and his cousin, Daniel Mayo, were at a Portsmouth, New Hampshire bar area late on July 14–15, 2012, and later encountered a crowded alleyway where multiple scuffles occurred near closing time.
- Zachary Green and several friends were also present; some in his group were intoxicated, and witnesses described a chaotic confrontation with punches, falls, and kicks.
- Witnesses for the State described Green attempting to calm the situation and then ending up on the ground, with limited recollection until he awoke in the hospital.
- Mayo testified he heard a racial slur, saw Daniel surrounded by hostile men, and believed Daniel was being assaulted and in danger.
- Mayo claimed Green approached quickly from behind and, believing Green was joining the attack on Daniel, Mayo kicked Green in the head to protect his cousin.
- Mayo was charged with assault offenses and tried before a jury in the New Hampshire Superior Court.
- The jury convicted Mayo of first-degree assault with a deadly weapon and reckless second-degree assault.
- Mayo appealed, challenging (1) the defense-of-another instruction, (2) denial of dismissal of the deadly-weapon charge on the ground that a shod foot is not a deadly weapon, and (3) admission of prior convictions for impeachment.
Issues
- Whether the trial court erred by instructing that Mayo could not use force in defense of another if the person defended provoked the encounter, without instructing that Mayo was justified if he reasonably believed the person defended was not the aggressor or provoker.
- Whether a “shod foot” can constitute a “deadly weapon” under RSA 625:11, V for first-degree assault purposes.
- Whether the trial court erred by admitting Mayo’s prior convictions for impeachment.
Decision
- The New Hampshire Supreme Court reversed Mayo’s convictions and remanded for further proceedings.
- The court held the defense-of-another instruction misstated New Hampshire law by effectively applying an alter-ego approach rather than RSA 627:4’s reasonable-belief standard.
- The court held a shod foot is not categorically excluded from the definition of “deadly weapon”; whether it qualifies depends on the manner of use and surrounding circumstances.
- Because reversal was required due to the instructional error, the remaining claims did not control the disposition.
Legal Principles
- Under RSA 627:4, defense of another turns on the defendant’s reasonable belief that force is necessary under the circumstances as the defendant perceived them; the defender may be justified even if that belief is mistaken.
- An “alter-ego” rule (conditioning justification on whether the person defended actually had the right to use force) is inconsistent with RSA 627:4’s reasonable-belief framework.
- When justification is raised, the State bears the burden to disprove justification beyond a reasonable doubt; jury instructions that omit the reasonable-belief component risk relieving the State of that burden.
- A “deadly weapon” under RSA 625:11, V includes an object (including a shoe on a foot) that, in the manner used, is capable of causing death or serious bodily injury; the inquiry is fact-specific.
Conclusion
The court ordered a new trial because the jury was not properly instructed that Mayo’s defense of another depended on his reasonable perceptions rather than on whether his cousin actually provoked the encounter; the court also clarified that a shod foot may qualify as a deadly weapon depending on how it is used.